SAY WHAT YOU MEAN, PRECICELY, OR A JUDGE WILL DECIDE WHAT YOU MEANT- #1 (Watch Your Language with "Repair Clauses" in Commercial Leases)

Watch Your Language
Courts will typically uphold language in a commercial lease, unless it is contrary to statutory law or public policy. Consequently, commercial landlords and tenants have a lot of leeway in allocating the risk and responsibility of issues inherent in commercial leases. For example, a commercial landlord leery of its tenant’s credit could draft a provision calling for a one year vs. a one month security deposit and not be obligated to provide to tenant, the interest on that deposit (See Ohio Revised Code Sec. 5321.16 for rules governing security deposits in residential leases in Ohio).

When allocating responsibility for maintenance and repairs, most commercial landlords intend for their tenant to make most of the repairs, especially in a long term, triple net (NNN) lease. But what about “replacements”? Does repair mean replacement? Some landlords may think so, however, most courts have decided that if a landlord wants a tenant to replace the roof, for example, vs. patch it periodically, the lease must provide, to the effect, that “it shall be the tenant’s obligation to repair and replace the roof.” See ASP Properties Group v. Fard, 35 Cal Rptr 3d 343 (Court of Appeals, 2005). See also Robert A. Schoshinski, America Law of Landlord and Tenant, §5:18 at 271 (1980). In the ASP case, a lease amendment was prepared after the lease was signed, to add the roof to the list of items that the tenant was to repair and maintain in good and safe condition. However, the Court determined the list to be a list of repair obligations, not replacement obligations for the tenant. Simply stated, “the courts have held that an express covenant to repair will not be enlarged by [language] construction…a covenant to repair does not include a covenant to replace”. Ohio Real Property Law and Practice, Sec. 20.08 [1]-[3] (2007).

Even the failure to follow a seemingly trivial grammar rule (the use of i.e. vs. e.g.) can result in unintended consequences. See Wolf v. Mitwalli, 1995 Conn. Super. Lexis 1480. In the Wolf case, the tenant intended for the landlord to make all of the “structural repairs”. The lease, which failed to define “structural repairs,” contained the following language: “The landlord is responsible for structural repairs only, i.e., air conditioning, boiler, wiring and utility replacements, provided tenant keeps up the maintenance.” The Court in Wolf held that the landlord was not responsible to make roof repairs, because “roof” was not included in the list of items provided in the lease.

The Court explained that “i.e.” means “that is” and “e.g.” means “for example.” In other words, the use of i.e. served to limit landlord’s structural responsibility to only those items listed in the lease. The Court determined that the language of the lease was clear and unambiguous, and therefore, it would not consider extrinsic evidence of the parties’ intent. The Court declared that it had no sympathy for the tenant who claimed he misunderstood the term i.e. and intended the lease to be interpreted as merely providing examples of the kinds of structural repairs to be effected by the landlord.

The moral of the story? Say what you mean, precisely, or a judge will decide what you meant.

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